Michael P. Murphy, Esq. v. Department of Environmental Protection - Bureau of Waste Site Cleanup (SPR 20171012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7, 2017 SPR17/1012 Irene J. Lavoie Records Response Coordinator Department of Environmental Protection Southeast Regional Office 20 Riverside Drive Lakeville, MA Dear Ms. Lavoie: I have received the petition of Michael P. Murphy, Esq. of Regnante, Sterio & Osborne, LLP, appealing the response of the Department of Environmental Protection Southeastern Regional Office (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Murphy requested to inspect and examine the records regarding the HV AC Renovations at the DPW Administration Building project and the related asbestos abatement and removal performed for the Town of Weymouth and Riverdale Plumbing & Heating, Inc. By letter dated June 9, 2017, Attorney Murphy was provided with a denial, including an index describing sixty-five (65) items of records being withheld under Exemption 111 (e) and Exemption (f) of the Public Records Law. On July 20 , Attorney Murphy appealed the Department's Exemption (e) and (f) claims to withhold the 65 items. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Irene Lavoie SPR1711012 Page 2 August 7, 2017 Exemption (e) The Department claims that notes, field notes and developed drawings (sample location plans, blank floor plans, abatement areas and contaminated areas) may be withheld pursuant to Exemption (e) ofthe Public Records Law. Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians .of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's memory of a work related activity or notes created by an employee to assist in preparing reports for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature; such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the Department may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. A review of the Department's index fails to provide the level of detail necessary to allow the Department to withhold the records under Exemption (e). The Department has provided no specificity concerning why it believes that field notes and drawings are "personal to a particular employee" and not part of the files of the government unit. It appears to this office that these records would be required to document evaluation of a particular environmental issue or investigation of an environment situation. The Department has not offered sufficient proof that the field notes and drawings are personal to any one employee and not required to be part of the government's files due to investigations or as part of an inspection. Therefore, the Department has not met its burden of withholding these records under Exemption (e) of the Public Records Law. Exemption (f) The Department has also withheld 60 items listed on its index, in particular emails between the Department staff members, photographs, photo logs and a developed organization

Irene Lavoie SPR17/1012 Page 3 August 7, 2017 chart, pursuant to Exemption (f). Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest· G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). The Department's index of records being withheld under Exemption (f) fails to provide any information of what investigation the Department conducted, completed or remains on going, and how release of even redacted records, especially emails, will prejudice any investigation in which the Department is involved. The information to support an exemption claim should be fully contained within the content of the index. The Department should have provided Attorney Murphy with a detailed written response to support its Exemption (f) claim. The Department merely listed the item number, general description of the item, date and a notation that it is being withheld under Exemption (f). I find that the Department has not sufficiently explained how Exemption (f) applies to any of the records withheld. Specificity in responding to public records requests The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 1 O(b )(iv) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. 111 The Department's June 9 response did not contain the specificity required in a denial of access to public records or portions of records. Instead, the Department's response merely cites Exemptions (e) and (f) without any further explanation as to the exemptions' applicability to each of the records or portions of records listed on its index. Therefore, I find that the Department did not meet its burden in responding to the records requests in order to comply with the Public Records Law and its Access Regulations. See G. L. c. 66, § 10(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979) (statutory exemptions are not blanket in nature).

Irene Lavoie SPR17/1012 Page 4 August 7, 2017 Order Accordingly, the Department is hereby ordered to provide Attorney Rogers with a further response to the request in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma. us. Attorney Murphy may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael P. Murphy, Esq.